Parliamentary sovereignty – impact of devolution and HRA Flashcards
What are the two other self-imposed limitations by modern Parliament?
*Devolution
*The HRA 1998
What is devolution?
The UK devolved powers to the Scottish Parliament and the National Assembly for Wales and the Northern Ireland Assembly in 1999.
This gave these bodies the right to legislate in relation to broad devolved matters, though core national powers on issues such as foreign and fiscal remain reserved to the UK Parliament in Westminster.
Does devolution undermine parliamentary sovereignty?
The devolution legislation stipulates that ultimate sovereignty resides in Westminster. Therefore, the policy of devolution cannot be said to have undermined the sovereignty of the Westminster Parliament.
What is the Sewel Convention?
Stability and effectiveness of devolution is meant to be supported by the Sewel Convention. This political rule’ has created an expectation that the UK Parliament will not normally’ legislate on devolved matters without the consent of the relevant legislature.
Is the Sewel Convention a legally enforceable rule? What would be the consequence if Parliament acted against it?
No it is not legally enforceable.
In legal terms, there would be nothing to stop the UK Parliament from, repealing the Scotland Act entirely and ending devolution.
In practical, political terms, the range of devolved powers has expanded since 1998. It is therefore difficult at present to see how the policy of devolution could be reversed without leading to a constitutional crisis, given the political direction of travel.
How was the HRA 1998 incorporated into UK domestic law?
In a very similar way to what happened in 1972, the UK incorporated the ECHR into UK domestic law.
Again, this demonstrates how, in the UK’s dualist system, a body of international law has to be brought within the domestic system by the passing of a statute.
What does s.2 HRA state?
This section requires that any court or tribunal determining a question which has arisen in connection with a Convention right must take into account the jurisprudence of the European Court of Human Rights (in Strasbourg), so far as, in the opinion of the court, it is relevant to the proceedings.
What is the “mirror principle”?
Lord Bingham developed a line subsequently known as the “mirror principle” – the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.
In recent years, have the courts changed the approach to s.2 HRA?
In recent years, the courts have been bolder in arguing for a development of the law that preserves the autonomy of English law in situations where jurisprudence from Strasbourg may be less relevant or attuned to the particular nature and culture of the common law system.
What does it mean that there should be a `dialogue’ in relation to s.2 HRA?
The idea is that there should be a dialogue between UK courts and the ECHR – they can learn from each other in how best to maintain and promote ECHR rights.
What does s.3 HRA state?
This section places an obligation on UK courts to strive to interpret existing legislation in an ECHR-compatible way.
This is seen as the must controversial opinion in the eyes of those who have concerns over the maintenance of orthodox sovereignty.
What have the courts confirmed in relation to s.3 HRA?
The courts have confirmed that in some circumstances it may be necessary for a s 3 interpretation to be made that appears to conflict with parliamentary intention.
However, the courts have stressed that this is only appropriate where the interpretation does not go “against the grain” of the underlying policy and scheme of the original legislation.
What does s.4 HRA state?
If the court is satisfied that a provision is incompatible with a Convention right, it may make a declaration of incompatibility.
What is a declaration of incompatibility?
*A declaration of incompatibility has a political rather than legal effect. It does not invalidate the law that has been deemed incompatible. It merely flags up the fact that it is incompatible. It is then a matter of political judgment for the relevant minister as to how to react.
*When a declaration is made under s 4, this is seen as a significant intervention and, in most cases, politicians do take steps to remedy the incompatibility in the law (though they are not compelled to).
*Some academics have categorised this as an indirect form of constitutional review of legislation.
What does s.19 HRA state?
Before legislation is passed, the sponsoring minister of Parliament has a duty under s 19 HRA to make a statement (before Second Reading) in relation to the compatibility of the bill’s provision with Convention rights.
